UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO ON E, SAN FRANCISCANS No. 22-15824 OPPOSING THE AFFORDABLE HOUSING PRODUCTION ACT; D.C. No. 3:22-cv- EDWIN M LEE ASIAN PACIFIC 02785-CRB DEMOCRATIC CLUB PAC SPONSORED BY NEIGHBORS FOR A BETTER SAN FRANCISCO ORDER AND ADVOCACY; TODD DAVID, AMENDED OPINION Plaintiffs-Appellants,

v. DAVID CHIU, in his official capacity as San Francisco City Attorney; SAN FRANCISCO ETHICS COMMISSION; BROOKE JENKINS, in his official capacity as San Francisco District Attorney; CITY AND COUNTY OF SAN FRANCISCO,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding 2 NO ON E V. DAVID CHIU

Argued and Submitted December 9, 2022 San Francisco, California

Filed March 8, 2023 Amended October 26, 2023

Before: Susan P. Graber and Ronald M. Gould, Circuit Judges. *

Order; Opinion by Judge Graber; Dissent from Order by Judge Collins; Dissent from Order by Judge VanDyke

SUMMARY **

First Amendment/Political Advertising

The panel issued (1) an order amending its opinion filed on March 8, 2023, denying a petition for rehearing en banc, and ordering that no future petitions will be entertained; and (2) an amended opinion affirming the district court’s denial of Plaintiffs’ motion for a preliminary injunction seeking to enjoin enforcement of a San Francisco ordinance that imposes a secondary-contributor disclaimer requirement on * Judge Watford, who was on the panel that issued the original opinion, left the court on May 31, 2023. In accordance with General Order 3.2(h), this Order and the Amended Opinion are issued by the remaining panel members as a quorum pursuant to 28 U.S.C. § 46(d). ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NO ON E V. DAVID CHIU 3

certain political advertisements, in addition to California’s top contributor disclaimer requirement. Under California law, certain political advertisements run by a committee must name the committee’s top financial contributors. The City and County of San Francisco added a secondary-contributor disclaimer requirement that compels certain committees, in their political advertisements, also to list the major donors to those top contributors. Plaintiffs, who supported the passage of a ballot measure in the June 7, 2022, election, alleged that the secondary-contributor disclaimer requirement violates the First Amendment, both on its face and as applied against Plaintiffs. The panel first determined that even though the June 2022 election had occurred, this appeal was not moot because the controversy was capable of repetition yet evading review. The panel held that Plaintiffs had not shown a likelihood of success on the merits of their First Amendment claim. Applying exacting scrutiny, the panel held that because the interest in learning the source of funding for a political advertisement extends past the entity that is directly responsible, the challenged ordinance was substantially related to the governmental interest in informing voters of the source of funding for election-related communications. Given the strength of the governmental interest, the panel was not persuaded by Plaintiffs’ argument that the size and duration of the required disclaimers displaced an excessive amount of Plaintiffs’ speech and presented an impermissible burden on their First Amendment rights. The requirements were closely tailored to Defenda